Page 18 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

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not be a U.S. company to be an issuer. Foreign concerns. Since 1998, the FCPA’s anti-bribery
companies with American Depository Receipts that provisions have applied to foreign persons and
are listed on a U.S. exchange are also issuers. foreign non-issuer entities that, either directly or
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As of December 31, 2015, 923 foreign companies through an agent, engage in any act in furtherance
were registered with SEC. Officers, directors, of a corrupt payment (or an offer, promise, or
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employees, agents, or stockholders acting on behalf authorization to pay) while in the territory of the
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of an issuer (whether U.S. or foreign nationals) also United States. Also, officers, directors, employees,
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can be prosecuted under the FCPA. agents, or stockholders acting on behalf of such
persons or entities may be subject to the FCPA’s
anti-bribery provisions.
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How Can I Tell If My What Jurisdictional Conduct
Company Is an “Issuer”?
Triggers the Anti-Bribery
• It is listed on a national securities exchange Provisions?
in the United States (either stock or American The FCPA’s anti-bribery provisions can apply
Depository Receipts); or
to conduct both inside and outside the United
• Its stock trades in the over-the-counter States. Issuers and domestic concerns—as well
market in the United States and the company is as their officers, directors, employees, agents, or
required to file SEC reports.
stockholders—may be prosecuted for using the U.S.
• To see if your company files SEC reports, go to mails or any means or instrumentality of interstate
SEC’s website at http://www.sec.gov/edgar/
searchedgar/webusers.htm. commerce in furtherance of a corrupt payment
to a foreign official. The Act defines “interstate
commerce” as “trade, commerce, transportation,
or communication among the several States, or
Domestic Concerns—15 U.S.C. § 78dd-2
between any foreign country and any State or
The FCPA also applies to “domestic concerns.” 50
between any State and any place or ship outside
A domestic concern is any individual who is a
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thereof ….” The term also includes the intrastate
citizen, national, or resident of the United States,
use of any interstate means of communication, or
or any corporation, partnership, association, joint-
any other interstate instrumentality. Thus, placing
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stock company, business trust, unincorporated
a telephone call or sending an e-mail, text message,
organization, or sole proprietorship, other than
or fax from, to, or through the United States involves
an issuer, that is organized under the laws of the
interstate commerce—as does sending a wire
United States or its states, territories, possessions,
transfer from or to a U.S. bank or otherwise using
or commonwealths or that has its principal place of
the U.S. banking system, or traveling across state
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business in the United States. Officers, directors,
borders or internationally to or from the United
employees, agents, or stockholders acting on behalf
States.
of a domestic concern, including foreign nationals
Those who are not issuers or domestic
or companies, are also covered.
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concerns may be prosecuted under the FCPA if
Territorial Jurisdiction—15 U.S.C. § 78dd-3 they directly, or through an agent, engage in any
The FCPA also applies to certain foreign act in furtherance of a corrupt payment while in
nationals or entities that are not issuers or domestic the territory of the United States, regardless of
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